Karl H. Timmerman M.A.J.D. © 2002
All Rights Reserved
A MISSOURI LAWYER'S
FRIDAY NIGHT RAMBLINGS
MoBar Solo and Small Firm Internet Group
JUNE 27, 2003
Greets and Huggers. Posted the evening of June 27, 2003. Lawrence v. Texas, http://supct.law.cornell.edu/supct/html/02-102.ZS.html may very well turn out to be the most important opinion rendered by the US Supremo's in our lifetime. Print it out and read it. It reviews the States interest in legislating morality and our right to privacy.
Justice Kennedy in Lawrence writes for the majority: "This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners' right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention."
In his Lawrence Dissent, Justice Scaglia writes: "The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, [ http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=478&invol=186 ] that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,”. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.", emphasis added.
Why is there a State interest in legislating a "majority" sexual moral view/interest? Why would or should there be. There isn't. To do so would negate, in theory, the sexual moral views of the other 49% of us. Is sex, as some believe, only for procreation? Or is sex, in its many forms, the highest and most intimate and private form of expression between consenting adults? There is no doubt, that the State has and should have an interest in criminalizing behaviors that victimize innocent persons. However, what is the State interest in criminalizing behaviors engaged in by consenting adults or behaviors where the only victim is the person engaging in the behaviors? Share with me where, in our Constitution, we granted the State the role of parens patria? I can not find it.
Justice Thomas in his Lawrence dissent writes: "I can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy, or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions."
Our Constitution does not contain a specific "right to privacy", but as Justice Douglas so eloquently wrote in Griswold v Connecticut http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=381&invol=479 :
" ..... the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one .... The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U.S. 616, 630 , as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life."
Privacy is the MOST fundamental of our rights: it is a recognition and celebration of our individuality and our uniqueness as human beings. It is the ultimate barrier against an Orwellian "1984" society .... <smiling> ..... and it keeps all pigs equal on this "Animal Farm" :)
Sitting here tonight at Ft Timmerman sipping some BBB, (those that attended our "Family" reunion had a chance to taste it) .... and editing these Ramblings. I rejoice in the Lawrence opinion: keep in mind, I'm a male lesbian. (Specifically, I crave intimacy with Susan, (she's female ... can't get enough of her). I know, I know ..... I'm a pervert.) Our tomatoes and cucumbers are coming in ... will have garden salads in a few more weeks ... the grape vines and apple trees are full of fruit. Will strap Zelda on http://www.karltimmerman.com/bike.html and take her for a walk tomorrow, (weather permitting). All is well at Ft Timmerman. Will curl up next to the ... hehehehe .... coldest set of feet I know .... and the warmest heart .... and drift off to sleep thanking God for his Grace and for the safe return of our men and women in uniform. Quoting our dollar bill, "In God We Trust" :)
If my post offends, I apologize ... that is not my intent.
Karl (the dumb ole country lawyer from Holden, Missouri).